What was afterwards called the Jurisdiction of the Lords

BESIDE the composition which they were o= bliged to pay to the relations for murders or injuries, they were also unde= r a necessity of paying a certain duty, which the codes of the barbarian la= ws call=E2=80=A1 fredum. We have no term in our modern language to = express it; yet I intend to treat of it at large; and in order to give an i= dea of it, I begin with defining it a recompence for the protection granted= against the right of prosecution. Even to this day, f= red, in the Swedish language, signifies peace.

The administration of justice among thos= e rude and unpolished nations, was nothing more than granting to the person= who had committed an offence, a protection against the prosecution of the = party offended, and obliging the latter to accept of the satisfaction due t= o him: insomuch that among the Germans, contrary to the practice of all oth= er nations, justice was administered in order to protect the criminal again= st the party injured.

The codes of the Barbarian laws have giv= en us the cases in which the freda might be dem= anded. When the relations could not prosecute, they allow of no fredum; and indeed, when there was no prosecution, there c= ould be no composition for a protection against it. Thus, in the law of the= Lombards, if = a person happened to kill a freeman by chance, he paid the value of the man= killed, without the fredum; because as he had = killed him involuntarily, it was not the case in which the relations were a= llowed the right of prosecution. Thus in the law of the* Ripuarians, when a person was killed= with a piece of wood, or with any instrument made by a man, the instrument= or the wood were deemed culpable, and the relations seized upon them for their own use, but were not allowed to demand the fredu= m.

In like manner, when a beast happened to= kill a man, the=E2=80= =A1 same law established a composition without the fredum, because the relations of the deceased were not offended.

In fine, it was ordained by the=E2=80=A0 Salic law, that a= child who had commited a fault before the age of twelve, should pay the co= mposition without the fredum: as he was not yet= able to bear arms, he could not be in the case in which the party injured,= or his relations, had a right to demand satisfaction.

It was the criminal that paid the fredum for the peace and security, of which he had be= en deprived by his crime, and which he might recover by protection. But a c= hild did not lose this security; he was not a man, and consequently could n= ot be expelled from human society.

This fredum = was a local right in favour of the person who was a judge of the district. Yet the law= of the Ripuarians=C2=A7= forbade him to demand it himself: it ordained, that the party who had = gained the cause should receive it and carry it to the exchequer, to the en= d that there might be a lasting peace, says the law, among the Ripuarians.<= /p>

The greatness of the fredum was proportioned to the degree of* protection: thus the fr= edum for the king=E2=80=99s protection was greater than what was gra= nted for the protection of the count, or of the other judges.

Here I see the origin of the jurisdictio= n of the lords. The fiefs comprized very large territories, as appears from= a vast number of records. I have already proved that the kings raised no t= axes on the lands belonging to the division of the Franks; much less could = they reserve to themselves any duties on the fiefs.

Those who obtained them= , had in this respect a full and perfect enjoyment, reaping every possible = emolument from them. And as one of the most considerable emoluments was the justiciar= y profits freda, which were received according = to the usage of the Franks, it followed from thence, that the person seized= of the fief, was also seized of the jurisdiction, the exercise of which co= nsisted of the compositions made to the relations, and of the profits accru= ing to the lord; it was nothing more than ordering the payment of the compo= sitions of the law, and demanding the legal fines.

We find by the formularies containing co= nfirmation of the perpetuity of a fief in favour of a feudal lord*, or of the privileges of fie= fs in favour of=E2=80=A0= churches, that the fiefs were possessed of this right. This appears al= so from an infinite number of charters=E2=80=A1 mentioning a prohibition to the king=E2=80=99s = judges or officers of entering upon the territory in order to exercise any = act of judicature whatsoever, or to demand any judiciary emolument. When th= e king=E2=80=99s judges could no longer make any demand in a district, they= never entered it; and those to whom this district was left, performed the = same functions as had been exercised before by the judges.

The king=E2=80=99s judges are forbidden = also to oblige the parties to give security for their appearing before them= : it belonged therefore to the person who had received the territory in fie= f, to demand this security. They mention also, that the king=E2=80=99s comm= issaries shall not insist upon being accommodated with a lodging; in effect= , they no longer exercised any function in those districts.

The administration therefore of justice,= both in the old and new fiefs, was a right inherent in the very fief itsel= f, a lucrative right which constituted a part of it. For this reason it had= been considered at all times in this light; from whence this maxim arose, = that jurisdictions are patrimonial in France.

Some have thought that the jurisdictions= derived their origin from the manumissions made by the kings and lords, in= favour of their bondmen. But the German nations, and those descended from = them, are not the only people who manumitted their bondmen, Edition: current; Page: [403] and yet the= y are the only people that established patrimonial jurisdictions. Besides, = we find by the formulariesOthers have taken a shorter cut: the lor= ds, say they, and this is all they say, usurped the jurisdictions. But are = the nations descended from Germany the only people in the world that usurpe= d the rights of princes? We are sufficiently informed by history, that seve= ral other nations have encroached upon their sovereigns; and yet we find no= other instance of what we call the jurisdiction of the lords. The origin o= f it is therefore to be traced in the usages and customs of the Germans.

Whoever has the curiosity to look into L= oyseau=E2=80=A0 will= be surprised at the manner in which this author supposes the lords to have= proceeded, in order to form and usurp their different jurisdictions. They = must have been the most artful people in the world; they must have robbed a= nd plundered, not after the manner of a military nation, but as the country= justices and the attornies rob one another. Those brave warriors must be s= aid to have formed a general system of politics throughout all the province= s of the kingdom, and in so many other countries in Europe: Loyseau makes t= hem reason, as he himself reasoned in his closet.

Once more: if the jurisdiction was not a= dependence of the fief, how come we every where=E2=80=A0 to find, that the service of the fief= was to attend the king or the lord both in their courts and in the army?

CHAP.21. The territorial Jurisdiction= of the Churches.

THE churches acquired a very considerabl= e property. We find that our kings gave them great seignories, that is, gre= at fiefs; and we find jurisdictions established at the same time in the dem= esnes of those churches. From whence could so extraordinary a privilege der= ive its origin? It must certainly have been in the nature of the grant: the= church land had this privilege, because it had not been taken from it. A s= eignory was given to the church; and it was allowed to enjoy the same privi= leges, as if it had been granted to a vassal. It was also subjected to the = same service as it would have paid to the state if it had been given to a l= ayman, according to what we have already observed.

The churches had therefore the right of = demanding the payment of compositions in their territory; and of insisting = upon the fredum; and as those rights necessaril= y implied that of hindering the king=E2=80=99s officers from entering upon = the territory, to demand these fr=C3=A9da and t= o exercise acts of judicature, the right which ecclesiastics had of adminis= tering justice in their own territory, was called immu= nity, in the style of the formularies*, of the charters, and of the capitularies.

The law of the Ripuarians=E2=80=A0 forbids the freedmen=E2=80=A1 of the churches= , to hold the assembly= =E2=88=A5 for administering justice in any other place than in the chur= ch where they were manumitted. The churches had therefore jurisdictions eve= n over freemen, and held their placita in the e= arliest times of the monarchy.

I find in the lives of the saints=C2=A7, that Clovis gave to= a certain holy person a power over a district of six leagues, and exempted= it from all manner of jurisdiction. This, I believe, is a falsity, but it = is a falsity of a very ancient date; both the truth and the fiction contain= ed in that life are relative to the customs and laws of those times, and it= is these customs* a= nd laws we are investigating.

Clotharius II. orders=E2=80=A0=E2=80=A0 the bishops or the = nobility who are possessed of estates in distant parts, to chuse upon the v= ery spot those who are to administer justice, or to receive the judiciary e= moluments.

The same prince=E2=80=A1=E2=80=A1 regulates the judiciary po= wer between the ecclesiastic courts and his officers. The capitulary of Cha= rlemaign in the year 802 prescribes to the bishops and abbots, the qualific= ations necessary for their officers of justice. Another capitulary of the s= ame prince inhibits the royal officers, to exercise any jurisdiction over those who= are employed in Edition: cur= rent; Page: [406] manuring church-lands, except they entered into that sta= te by fraud, and to exempt themselves from contributing to the public charges.

The bishops assembled at Rheims made a declaration*, that the vassals belonging to the resp= ective churches are within their immunity. The capitulary of Charlemaign in= the year 806 ordains that the churches should have both criminal and civil jurisdicti= on over those who live upon their lands. In fine, as the capitulary=E2=80=A1 of Charles the Ba= ld distinguishes between the kings jurisdiction, that of the lords= , and that of the church; I shall say nothing farthe on this subject.

Chapter 22: The Jurisdictions were es= tablished before the End of the second Race.

IT has been pretended that the vassals u= surped the jurisdiction in their seignories, during the confusion of the se= cond race. Those who chuse rather to form a general proposition than to exa= mine it, found it easier to say that the vassals did not possess, than to d= iscover how they came to possess. But the jurisdictions do not owe their or= igin to usurpations; they Edi= tion: current; Page: [407] are derived from the primitive establishment, = and not from its corruption.

=E2=80=9CHe who kills a freeman, says* the law of the Bavari= ans, shall pay a composition to his relations, if he has any; if not, he sh= all pay it to the duke, or to the person under whose protection he had put = himself in his life-time.=E2=80=9D It is well known what it was to put one= =E2=80=99s self under the protection of another for a benefice.

=E2=80=9CHe who had been robbed of his b= ondman, says the law of the Alemans=E2=80=A0, shall have recourse to the prince to whom the rob= ber is subject; to the end that he may obtain a composition.=E2=80=9D

=E2=80=9CIf a cente= narius, says=E2= =80=A1 the decree of Childebert, finds a robber in another hundred than= his own, or in the limits of our faithful vassals, and does not drive him = out, he shall be answerable for the robber, or purge himself by oath.=E2=80= =9D There was therefore a difference between the district of the centenarii= and that of the vassals.

This decree of Childebert explains the constitution= of Clotharius in the same year, which being given for the same case and fa= ct, differs only in the terms; the constitution calling in truste, what by the decree is stiled in te= rminis fidelium nostrorum. Messieurs Bignon and Ducange=C2=A7 who pretend that in Edition: curre= nt; Page: [408] truste signified another king=E2=80=99s demesne, ar= e mistaken in their conjecture.

Pepin, king of Italy, in a constitution that had been made= as well for the Franks as for the Lombards, after imposing penalties on th= e counts and other royal officers, for prevarications or delays in the administration of justice, ordains=E2=80=A0=E2=80=A0 that if it happens that a Frank or a Lombard p= ossessed of a fief is unwilling to administer justice, the judge to whose d= istrict he belongs, shall suspend the exercise of his fief, and in the mean= time, either the judge or his commissary shall administer justice.

It appears by a capitulary* of Charlemaign, that the kings d= id not levy the freda in all places. Another=E2=80=A0 capitulary of= the same prince shews the feudal laws, and feudal court to have been alrea= dy established. Another of Lewis the Debonnaire ordains, that when a person= possessed of a fief, does not administer justice=E2=80=A1, or hinders it from being administer= ed, the king=E2=80=99s commissaries shall live upon him at discretion, till= justice be administered.

I shall likewise quote two=E2=88=A5 capitularies of Charles the Bald,= one of the Edition: current;= Page: [409]<= /span> year 861; where we find the particular jurisdictions establis= hed, with judges and subordinate officers; and the other=C2=A7 of the year 864, where he makes= a distinction between his own seignories and those of private persons.

We have not the original grants of the f= iefs, because they were established by the partition, which is known to hav= e been made among the conquerors. It cannot therefore be proved by original= contracts, that the jurisdictions were at first annexed to the fiefs: but = if in the formularies of the confirmations, or of the translations of those= fiefs in perpetuity, we find, as already hath been observed, that the juri= sdiction was there established; this judiciary right must certainly have be= en inherent in the fief, and one of its chief privileges.

We have a far greater number of records,= that establish the patrimonial jurisdiction of the clergy in their distric= ts, than there are to prove that of the benefices or fiefs of the feudal lo= rds; for which two reasons may be assigned.

The first, that most of the rec= ords now extant were preserved or collected by the monks, for the use of th= eir monasteries. The second, that the patrimony of the several churches hav= ing been formed by particular grants, and by a kind of exception to the ord= er established, they were obliged to have charters granted to them; whereas= the concessions made to the feudal lords being consequences of the politic= al order, they had no occasion to demand, and much less to preserve, a part= icular charter. Nay, the kings were oftentimes satisfied with making a simp= le delivery with the scepter, as appears from the life of St. Maur.

But the third formulary* of Marculfus sufficiently proves, t= hat the privileges of immunity, and consequently that of jurisdiction, were= common to both the clergy and the laity, since it is made for both. The sa= me may be said of the constitution of Clotharius II=E2=80=A0.